APPENDICES
Section 32 – exemption relating to processing of personal data for the purposes of journalism Introduction to s32
¶4.31 The 1984 Act contained no specific exemption for the press, however Article 9 of the Directive
required Member States to provide for exemptions or derogations for processing of personal data carried out solely for journalistic, literary or artistic purposes, to the extent that this is necessary to reconcile the right to privacy with the rules governing freedom of expression. The DPA approaches the potential conflict between the obligations imposed on data controllers and the public interest in preserving the right to freedom of expression principally by means of section 32.
¶4.32 As Tugendhat J observed in Commissioner of Police of the Metropolis v Times Newspapers
the statute refers to "journalism" and "journalistic material" and not to "journalists" and this is consistent with the Strasbourg jurisprudence that distinguishes between types of speech rather than types of speaker.357
¶4.33 The passage of the DPA through Parliament was not uncontroversial, some concerns were
expressed about s32, then clause 31 of the Bill, that the exemption for the press was too wide and undermined the legislation and that the clause failed to protect privacy.358 Lord Lester of Herne Hill warned that the Bill failed to implement the directive in this respect.359
¶Scope of s32 4.34 Section 32(1) as enacted provides:
"(1) Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if— (a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes."
¶4.35 Section 32(3) provides that in considering whether the belief of a data controller that
publication would be in the public interest was or is a reasonable one, regard may be had to his or her compliance with any code of practice which is relevant to the publication in question and has been designated by order of the Secretary of State.360
¶4.36 The proper scope of section 32(1) has been the subject of consideration in the evidence
1911heard by the Inquiry and written submissions from a number of Core Participants to the Inquiry. These are recorded here for completeness.
¶Appendix 4 | Legal Materials
¶4.37 The issue which has been canvassed before the Inquiry is whether s32(1)(a), properly
interpreted, requires the processing of the relevant data to be undertaken with a view to publishing the data that is being processed ("the narrow view"), or whether s32(1)(a) requires only that the relevant data is processed with a view to publication of any journalistic material generally, irrespective of whether there is a view to publish the data ("the wide view"). The difference between these views can be illustrated by taking an example which Leading Counsel to the Inquiry canvassed with a number of witnesses. If a journalist obtained an ex-directory telephone number of the subject of a story they were writing for the purpose of contacting the individual and putting the story to them, does the act of obtaining and processing the telephone number fall within the s32 exemption on the basis that the processing is with a view to publication of an article generally, or does it fall outside the s32 exemption on the basis that the processing of the data is not with a view to publication of the data that is being processed; i.e the telephone number?
¶4.38 Mr Richard Thomas, former Information Commissioner, expressed the view that if the data
controller is processing data with a view to contacting someone (for example someone who is about to be subject of a story) that would fall outside s32.361 By contrast, Mr Graham responded that, whilst he agreed the processing was not with a view to publication of the data, the activity is for the preparation of an article for publication and some information may make it into the paper and some may not. Mr Graham stated that if the point is put that s32 covers writing the piece but it doesn't cover the obtaining of the evidence, this would be a challenging distinction about which he would need to think further.362
¶4.39 Guardian News Media have submitted that the broad view should be preferred and that the
narrow view is inconsistent with the statutory language and case law. In their submission, in order for s32 to be interpreted in a narrow sense, i.e. where the processing of data must be undertaken with a view to publishing the data itself, this would arguably require the addition of words into s32(1)(a) of the Act, as follows:
"if (a) the processing is undertaken with a view to the publication by any person of [that data in] any journalistic material" (the words added are in square brackets and underlined).
¶4.40 They further rely on the decision of the Court of Appeal in Campbell v MGN as being inconsistent with the narrow view of s32.363
¶4.41 The rationale for the exemption in s32 was expressed by the Court of Appeal in Campbell v
¶MGN Ltd in the following terms:364
1912"The overall scheme of the Directive and the Act appears aimed at the processing and retention of data over a sensible period. Thus the data controller is obliged to inform the data subject that personal data about the subject have been processed and the data subject is given rights, which include applying under s.14 for the rectification,